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Wednesday, November 06, 2013

Modern legislation as "emergent phenomena" AFTER the bill is passed

One of George Will's more valuable insights is that Congress does not pass legislation anymore but rather passes "intentions". I would add to that the modifier ""purported" to make the designation "purported intentions". Some and often much of actual meat of the bill or the devilish details are filled in later by various bureaucrats and government appointees in various agencies committees and Cabinet posts. The Affordable Care Act and the Dodd-Frank bills are recent egregious examples of that phenomenon.

Many of the actual operational details of both bills are still being written by various governmental entities several years after the President signed them into law.These details are emergent phenomena of the actions and interactions of various agencies as they write the regulations that define bills with varying degrees of influence from various interested parties politely referred to now as stakeholders.

Of course, even as Congress passes intentions some very specific items do end up in legislative acts that favor one or another special interest For example, the big hospital lobby was rewarded for their support of ACA by an exemption for a number of years (I think until 2020) from the edicts of IPAB and also the outlawing of new physician owned hospitals eliminating one source of competition .There may well be other nuggets of pork in the hundreds of pages of ACA that benefit Big Hospitals. The more complex,arcane and opaque the legislation the better is it ,both from the point of view of the law and rule makers and the special interests and their lobbyist wise guys.

Nancy Pelosi was only partially right in her famous statement that we have to pass the bill (ACA) to see what is in it.Actually we only got to see some things in broad general terms and some specifics that typically favor some interest group but have to wait varying periods of time for important elements of the bill that will be written by various governmental entities. Two years later for ACA the details are still gradually being determined and issued as bureaucratic edicts which for the most part are immune from appeal.

Since the much of real meat of the health care legislation is still being written meaning what ACA would do was unknown at the time of the commentary leading up to its passage. How could anyone rationally support the bill.How could medical organizations such as AMA and ACP lobby for the bill when the details that constitute the real effects of the bill were unknown and unknowable.They could likely only support the purported intention of the bill.

The legislative process is a push and pull of various interests and coalitions and horse trading and lobbying and the final bill emerges but the emerging is only begun as some of the particulars will only emerge from the push and pull of various administrative and regulatory entities as they plod along with their various administrative bureaucratic characteristics as they too are influenced by specific lobbying forces.The wheels and levers of crony capitalism do not stop when the president signs the bill.

Thomas Sowell in in his 1980 masterpiece Knowledge and Decisions warns against "characterizing process by their hoped-for results rather than their actual mechanics". Praise for ACA from AMA and ACP because it purportedly furthered social justice lacks basis as no one could know what the end result would be for social justice or anything else as many of the real defining characteristics of the bill were unknown at the time ( and in many regards remains so today).One can argue that giving insurance cards to 30 million people will result in a struggle to find a physician for everyone and in that struggle (as in most struggles) the poor will lose out as it will be the folks with more money and contacts,education and social skills who are in the front of the waiting lines . Giving 15 million people more Medicaid cards out may not be doing any favors to those folks as currently there are far too few physicians who will accept Medicaid patients. Further, as Dr. Scott Atlas has pointed out some studies show that Medicaid patients receive health care inferior to that received by patients who have no health insurance at all.

Dr Donald Berwick,the short lived director of CMS, said that good health care was by definition redistribution. ACA will result in redistribution.Will the poor and uninsured be the recipients of the redistribution or will the recipients more likely be big pharma,big hospitals, big health care insurance and big health care IT?